Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. BJP014618 of Madera County. Nancy C. Staggs, Commissioner.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant T.B. (Mother) appeals from the denial of a petition for modification (Welf. & Inst. Code, § 388) regarding her dependent daughter, E. Mother contends the juvenile court relied on incorrect law when it denied the petition. Mother further contends the bench officer was biased, and she requests we remand the case to be heard by another officer.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Since the filing of this appeal, Mother has been granted further reunification services and, as a result, the Madera County Department of Public Welfare (the department) has filed a motion to dismiss the appeal on the ground of mootness. Mother now objects to the dismissal, arguing that the appeal is not moot because E. has not been returned to her custody.
We take judicial notice of the juvenile court’s August 15, 2007 order, which granted Mother six months of reunification services.
We conclude the recent granting of further services to Mother moots her appeal of the order denying the petition for modification. In addition, we deny Mother’s request that further proceedings be held before a different bench officer.
FACTUAL AND PROCEDURAL SUMMARY
Mother came to the attention of the department in October 1998, when E. tested positive for cocaine at birth. Mother admitted using alcohol, marijuana, crank and tobacco during the first trimester of her pregnancy. Mother participated in various services until July 6, 1999. She was offered further services, but she declined.
In March 2001, the department received a referral alleging that Mother was homeless and on drugs and E. was left in the care of another adult.
On November 14, 2002, E. was detained because of domestic violence and a filthy home that lacked electricity and running water. On January 8, 2003, at the disposition hearing, E. was returned to Mother’s custody and the court ordered family maintenance services.
By the time of the July 7, 2003 six-month review hearing, Mother had complied with her plan and made impressive changes in her life, which the social worker described as “‘night and day.’” The juvenile court dismissed dependency for E. based on Mother’s significant progress.
Mother began a relationship with a man named Sonny. The relationship was “really good” until stressful events arose in Mother’s life. In December 2003, Mother lost her job, and in February 2004, she lost her housing.
On April 18, 2004, E. was detained a second time and again placed with a foster family. Mother was arrested for engaging in domestic violence with Sonny. E. reported that Sonny threatened to kill Mother. He choked and hit Mother. He had a bruise on his back and scratches on his face. According to Mother, she and Sonny got into an argument during which he hit her and she slapped him. Mother was again staying in a filthy home without running water. Mother claimed the home was not hers and she was staying with friends. E. was no longer attending school.
In a disposition report dated June 23, 2004, the social worker stated that Mother had recently ended her eight-month relationship with Sonny because it was best for Mother and E. Mother and Sonny continued to talk and considered resuming their relationship in the future.
On July 12, 2004, the court ordered family reunification services. E. looked forward to Mother’s weekly visits.
In November 2004, Sonny claimed he kicked Mother out of the house because she was using drugs. Mother said Sonny had physically abused her and she was staying with a cousin.
E.’s foster parent described E. as well-behaved, but noted that her behavior changed after visits with Mother and Mother’s mother (Grandmother). E. started wetting the bed and behaving defiantly. But when E. was placed in a new foster home on January 27, 2005, her bedwetting and other behavioral problems ceased. E. was evaluated and found not to need any therapy.
On March 2, 2005, Mother married Sonny. He promised her he was no longer abusing drugs, but she later became suspicious of his behavior and reported him. He was arrested and imprisoned for violating probation.
In April 2005, Mother got a job delivering pizzas. She tested negative for drugs in seven random tests during February through April of 2005, but in June 2005, she was arrested for possessing drugs. The social worker reported that Mother showed a genuine desire to be reunited with E. Mother and E. were strongly bonded to one another and their visits were full of positive interactions and promises of reunification. Mother informed the social worker she was willing to do whatever was necessary to reunify with E., but the social worker noticed a decline in Mother’s efforts beginning in the spring of 2005, at which time she quit attending domestic violence sessions, married Sonny (who had been involved in drugs and domestic violence), and was arrested for possession of drugs. The social worker concluded Mother had failed to demonstrate her ability to provide a safe and stable living environment for E.
At the 12-month review hearing on July 27, 2005, the juvenile court found that Mother had not made significant progress and it terminated family reunification services and set a section 366.26 hearing.
In a report prepared for the hearing, the social worker stated the department had determined E. was adoptable, although no prospective adoptive parents had been identified. The department recommended that a permanent plan of adoption be ordered and parental rights be terminated. Mother continued to visit E. and their visits were appropriate and enjoyable.
On December 5, 2005, the juvenile court granted Mother’s request for a continuance and ordered that a bonding study be performed before the section 366.26 hearing.
On December 20, 2005, Mother was arrested and put in jail for violating probation.
On January 31, 2006, the social worker noted E. was a good student, but there was some concern she was missing too much school due to weekly visits with Mother. Visitation was therefore reduced to every other week and E. seemed to improve at school. E. still thoroughly enjoyed visitation with Mother and Grandmother. E. had been in the same foster home for one year. She was comfortable with her foster family and got along with the other foster children and the neighborhood children. The social worker proposed reducing Mother’s and Grandmother’s visitation to once monthly.
On March 6, 2006, Dr. Laura Geiger conducted the bonding study. She concluded seven-year-old E. had such a strong emotional bond with Mother that she would be greatly harmed if her relationship with Mother were terminated. Mother and E. shared a strong, healthy and mutually satisfying relationship from which they both gained strength and comfort. Their interactions were warm and loving. E. did not exhibit psychological fragility and had not been seriously damaged from any neglect or exposure to domestic violence. E. continued to view Mother as her mother and obviously enjoyed spending time with Mother during her regular visits. Mother demonstrated strong overall parental skills with no parenting problems noted. Based on her observations, the psychologist concluded that severing E.’s relationship with Mother through adoption would be very damaging to E.
On April 26, 2006, the contested section 366.26 hearing was held. Dr. Geiger testified and her report was entered into evidence. The social worker testified that he disagreed with the study, although he admitted he had no training or license to perform a bonding study. He believed adoption was the best plan because Mother had experienced relapses in her recovery and had failed to reunify with E. He disagreed with the bonding study based on the termination of Mother’s reunification services and the time frame of services offered to her.
The social worker opined that options other than adoption would be detrimental to E. He conceded he had reported in June 2005 that Mother had a genuine desire to reunite with E, that there was no question as to their strongly bonded relationship, and that their weekly visits were full of positive interactions and promises of reunification. He continued to believe Mother and E. were strongly bonded and admitted there probably would be some detriment to severing their bond and placing E. in an adoptive home, but he believed E. would suffer more detriment if she were returned to Mother’s care. The social worker further testified that E. had a good relationship with her current foster family, but the family did not wish to adopt her.
Mother testified she loved E. and had a strong bond with her. Mother believed it would be extremely detrimental to sever their bond. Mother explained that she continued to visit E. since termination of reunification services. She stated she was unable to complete her reunification services because she had been incarcerated due to a probation violation, but she had previously attempted to improve her situation.
On May 3, 2006, after consideration of the evidence, the court found that termination of Mother’s parental rights would be detrimental to E. because Mother had maintained visitation and contact with E. and E. would benefit from a continuing relationship with Mother. The court ordered a permanent plan of legal guardianship rather than reunification and ordered that visitation with Mother continue, although it now would be supervised. The court stated:
The department appealed the decision to allow further visitation, but later dismissed the appeal.
“I’m not finding that reunification is within the realm of possibility because you’re out of time as far as services are concerned. So the legal guardianship is essentially what we’re left with. I looked at all the other alternatives and there’s really nothing else out there that I think would serve [E.’s] best interest.
“I really think that probably adoption, if [E.] hadn’t been falsely represented all this time and had her hopes up, and been allowed to have extended visits with[ you, ] my decision would have been different, but with you being able to continue to visit, continue to make promises, and etc. That has done something in [E.] that I cannot repair now.”
The court stated it had not actually denied or terminated reunification services, but Mother was simply out of time.
In the status review report prepared for the August 4, 2006 section 366.3 post-permanency plan review hearing, the social worker stated that E.’s foster parents had become interested in adopting E. E. was comfortable in the placement, and she shared a room with the foster parents’ adopted daughter who was one year older than E. E.’s visitation with Mother and Grandmother continued. The visits were still enjoyable and appropriate. When Sonny was present, E. referred to him as “Daddy.” At the hearing, the court ordered that E.’s permanent plan would remain guardianship.
On November 2, 2006, Mother filed a section 388 petition for modification, requesting that the court return E. to her custody and dismiss dependency, or alternatively, increase her visitation with E. The court set a hearing for November 7, 2006.
On November 7, 2006, the court convened a combined hearing on the department’s request to set a section 366.26 hearing and Mother’s petition to modify. The only parties present were the attorneys and the social worker. E.’s attorney and Mother’s attorney informed the court they were unaware the court would be considering the section 388 petition and setting a section 366.26 hearing. As a consequence, Mother’s attorney advised the court she was unable to notify Mother of the proceedings. The court stated Mother had not presented any new information, her opportunity to reunify had lapsed and there was no likelihood the court could return custody of E. to Mother without supervision. In addition, the court stated it did not intend to conduct multiple hearings and that any issues Mother wanted to raise by way of a section 388 petition, she could raise at the section 366.26 hearing. Consequently, the court set a combined section 388 and section 366.26 hearing for March 7, 2007.
On December 14, 2006, Mother challenged the court’s order setting the section 366.26 hearing. Mother petitioned this court for an extraordinary writ directing the juvenile court to vacate its November 7, 2006 order setting the section 366.26 hearing. Concluding Mother was denied notice of the hearing, we granted the petition and the juvenile court vacated the hearing.
We take judicial notice of this court’s unpublished case F051663, filed on February 28, 2007, which granted Mother’s petition.
At the section 388 modification hearing held on January 30, 2007, Mother presented evidence that she had completed various programs, had remained drug free, had obtained full-time employment, and had rented a clean and furnished three-bedroom home. Sonny had also participated in and completed various programs. The court determined that Mother had shown a change in circumstances, but the court repeatedly stressed that Mother had exhausted her allotted services and return of E. to Mother’s care, without supervision by the department, would not be in E.’s best interests. The social worker testified that returning E. to Mother’s care without the safety net of further services would not be in E.’s best interests. The court found Mother had not shown that the change would be in E.’s best interests and therefore denied the motion.
DISCUSSION
I. Mootness
Mother contends the juvenile court erred by denying her petition to modify. She argues the juvenile court misunderstood the law and failed to recognize she was eligible for further reunification services under section 366.3, subdivision (e). She requests that we reverse the juvenile court’s denial of her petition to modify and remand for a new hearing. As mentioned, on August 15, 2007, following the filing of this appeal, the juvenile court granted Mother six months of further reunification services, applying the law Mother contends it failed to apply previously.
The department argues the issue is now moot because Mother has received her remedy. In opposition, Mother argues the issue is not moot because E. has not been returned to her custody. This remedy, however, is not one we could grant Mother upon reversal. Our reversal would instead result in a new hearing on the petition to modify, with instructions to the juvenile court to reconsider the petition in light of the correct law, which it has since applied.
Not only would our reversal not guarantee any particular outcome at a new hearing, but the juvenile court’s recent orders, made in light of the correct law, suggest the court would, at a new hearing, order further services rather than return E. to Mother’s custody.
Mother did not appeal the juvenile court’s August 15, 2007 order granting further reunification services and therefore the order has become final. Because that order is no longer appealable and remains in effect, reversal on the earlier order would result in no tangible relief to Mother. And because Mother did not challenge the August 15, 2007 order granting services, we assume the order was a reasonable one. For these reasons, we conclude the issue is moot and must be dismissed. (See, e.g., In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315 [later final order mooted appeal of earlier order]; In re Pablo D. (1998) 67 Cal.App.4th 759, 761 [when appellate court is left without ability “to fashion an effective remedy,” the appeal is moot and should be dismissed].)
In In re Jessica K., the court explained: “In this case, mother appealed from the order summarily denying her section 388 petition, but did not appeal from the order terminating parental rights, allowing the termination order to become final. The failure to file a timely notice of appeal from the termination of parental rights order deprives us of appellate jurisdiction to modify that order. Accordingly, the parental rights termination order may not be vacated. No effective relief may be afforded mother even were we to find her appeal of the denial of the section 388 petition meritorious. Thus, the appeal is moot.” (In re Jessica K., supra, 79 Cal.App.4th at pp. 1316-1317.)
II. Remand to Different Bench Officer
Mother contends the bench officer was biased against her and had predetermined that she could never be reunified with E. Mother asks us to direct that further proceedings be conducted before a different officer.
Code of Civil Procedure, section 170.1, subdivision (c) provides that, at the request of any party, the “appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.” “[T]he statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it,” such as “where the [action] of the original judge indicates an animus inconsistent with judicial objectivity.” (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.)
A bench officer’s legal error does not amount to bias unless it “suggests a whimsical disregard of the [legal] scheme that is incompatible with a judicious effort to comply with its complex terms.” (People v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1562; People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1231 [“mere judicial error is not conclusive evidence of bias or grounds for disqualification”].) Failure in the application of a complex statutory scheme “cannot be said to reflect a lack of objectivity implicating the interests of justice.” (Gulbrandsen, supra, at p. 1562.)
Furthermore, frustration and critical comments do not necessarily suggest a judicial bias. The bench officer “‘will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case. These opinions and expressions thereof may be critical or disparaging to one party’s position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification.’” (Haldane v. Haldane (1965) 232 Cal.App.2d 393, 395; see Kreling v. Superior Court (1944) 25 Cal.2d 305, 312 [“when the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to that prejudice against a litigant which disqualifies him in the trial of the action”].) As the United States Supreme Court has observed: “The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.... ‘Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.’ [Citation.]” (Liteky v. United States (1994) 510 U.S. 540, 550-551.)
In this case, Mother has failed to show any “animus inconsistent with judicial objectivity.” (People v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1562.) Moreover, the juvenile court’s recent order of further reunification services for Mother suggests the judge had not predetermined that reunification was impossible. The power of appellate courts to disqualify judges under Code of Civil Procedure, section 170.1(c) should be used “sparingly and only where the interests of justice require it.” (People v. Gulbrandsen, supra, at p. 1562.) We conclude this is not a case that requires the exercise of that power.
DISPOSITION
The department’s motion to dismiss the appeal of the denial of the petition to modify is granted. Mother’s request that further proceedings be conducted before a different bench officer is denied.
WE CONCUR: Harris, Acting P.J., Hill, J.